Citation NR: 9623417
Decision Date: 08/22/96 Archive Date: 08/30/96
DOCKET NO. 94-32 468 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUE
Entitlement to an increased evaluation for post traumatic
stress disorder, currently evaluated as 30 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Ronald R. Bosch, Counsel
INTRODUCTION
The veteran served on active duty from August 1967 to June
1970.
This appeal arose from a November 1993 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Louis, Missouri. The RO granted entitlement to service
connection for post traumatic stress disorder with the
assignment of a 30 percent evaluation.
The RO affirmed the determination previously entered when it
issued a rating decision in January 1996.
The case has been forwarded to the Board of Veterans’ Appeals
(Board) for appellate review.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that his post traumatic stress disorder
is more disabling than currently evaluated, thereby
warranting entitlement to an increased evaluation.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the record supports a grant of
entitlement to an increased evaluation of 50 percent for post
traumatic stress disorder.
FINDING OF FACT
Post traumatic stress disorder is productive of considerable
social and industrial impairment.
CONCLUSION OF LAW
The criteria for an increased evaluation of 50 percent for
post traumatic stress disorder have been met. 38 U.S.C.A. §§
1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.7,
4.132, Diagnostic Code 9411 (1995).
REASONS AND BASES FOR FINDING AND CONCLUSION
Factual Background
The veteran trained as a rifleman and served a tour of duty
with the United States Marine Corps in Vietnam. His
decorations include a Combat Action Ribbon, Purple Heart
Medal, Silver Star Medal, the Vietnam Cross of Gallantry with
Frame and Gold Oak Leaf, and Vietnam Service Medal with 5
Service Stars.
A September 1993 report from the Vet Center shows the veteran
attributes much of his guilt and control of anger issues,
near misses and learned helplessness to Vietnam service. He
reported that he self-medicated with alcohol at times to
reduce the physical pain from obvious injuries and to reduce
or numb the psychological pain from Vietnam memories.
During a September 1993 VA special psychiatric examination
the veteran denied any current contributing, pertinent or
personal stresses other than pain, finances, and depression.
He was employed as a welder. This job was getting more
difficult because of increasing pain in the left shoulder.
The veteran complained that his pain was getting more
unbearable. He was becoming more irritable than he had been.
Flashbacks were increasing because the pain reminded him of
being wounded.
The veteran was having nightmares reliving events in
service. Nightmares and flashbacks had increased in
frequency since the pain had increased in recent months.
With Desert Storm all of the flashbacks, painful
recollections and sensitivity to reminders suddenly
escalated. He began seeing flashes of more details of
wounded men, dead men, dismembered men crying and screaming
and being trapped. A recent exposure to the Vietnam Wall
further exacerbated symptoms. Still further exacerbating
were sandbags being laid along dikes and wells in the flood.
Mosquitoes also intensified the flashbacks. During
flashbacks he found himself roaming around the house,
checking on his children, and the perimeter of the house as
well.
The examiner noted the veteran had been in group therapy at
the Vet Center since June 1993. He believed it may be
helping him, but he was not certain. The claimant was not
taking any medication. On mental status examination the
veteran was agitated, depressed, tearful, restless, and
distractible throughout the session. He verbalized on direct
interviewing. He was inhibited and ambivalent in describing
his combat experiences. He feared talking about them and
activating flashbacks. The appellant described multiple post
traumatic stress criteria including avoidant behavior,
reexperiencing combat anxiety on reminders such as choppers,
pain from his wound, Desert Storm, the Vietnam Wall and
mosquitoes. He described feelings of a foreshortened future
with marked hyperalertness including irritability, anger and
the fear of losing impulse control. Insight was fair. The
examination diagnosis was post traumatic stress disorder,
chronic, with major depression secondary to the above.
A September 1993 VA social and industrial survey shows the
veteran was currently and had been employed as a welder for
20 years. He was also employed by the United States Postal
Service. The clinical impression shows the veteran was
having bad dreams that were extremely vivid of his war time
experiences. He was still having dreams of the times he was
shot and fearing death. Almost every event was a constant
reminder that triggered flashbacks of Vietnam. He had
constant fear that his children would be harmed by his
reaction to his dreams and flashbacks.
The veteran presented testimony in support of his claim for
increased compensation benefits for post traumatic stress
disorder at an RO hearing held in June 1994. He described
the disabling manifestations of his psychiatric
symptomatology and how it had adversely affected him in his
daily functioning.
On file is a report dated in August 1994 from the Vet Center.
The report reiterated information previously provided with
respect to the veteran’s currently symptomatology and need
for psychotherapy until significant reduction in his symptoms
had been achieved.
During a December 1995 VA special psychiatric examination the
veteran provided additional examples of daily incidents which
triggered distressing recollections of his Vietnam combat
experiences. He reported that his therapy was not helping
him. He was working full time as a welder. The appellant
stated that he had recurring flashbacks and nightmares. He
got into explosive argumentative hostile situations with
people with whom he worked. He had not spoken to one
employee in several years. The appellant described
continuing vegetative depressive symptoms of lethargy,
impaired energy, intermittent sleep disturbances, feelings of
futility, estrangement and withdrawal. His anger was said to
provoke his children who were afraid f him.
The veteran stated that he tended to over react and fly off
the handle. On one occasion one child was crying and he
punched out a door nearly seriously wounding himself. He
related exaggerated hyperalertness in relation to fear that a
disaster was going to occur. In counseling he feared
reliving combat events. He felt somewhat better during the
therapy but worse afterwards. It brought back memories of
killing and exposure to death. On Sundays during church
services he always felt someone would storm in and he would
have to kill the person. The veteran reported survival
guilt. He was always afraid of hurting someone.
On examination the veteran related adequately. While he was
able to discuss his experiences he became pressured in speech
with increased rate, agitation, and depression. He finally
broke down crying, was restless and distractible throughout
the session. The appellant related all of his post traumatic
stress disorder symptoms had been worsening since his back
surgery. Avoidant behavior, reexperiencing combat, anxiety,
sensitivity to triggering of flashbacks by helicopters, pain
in his wound, Desert Storm, news and television accounts of
warfare were all reported. Insight was fair. The examiner
noted post traumatic stress disorder with secondary
depression, increased in severity.
Analysis
Initially, the Board notes that the veteran has presented
evidence of a well grounded claim within the meaning of
38 U.S.C.A. § 5107(a), in that it is plausible that his post
traumatic stress disorder has increased in severity or is
more disabling than currently evaluated. The Board is
satisfied that all relevant facts have been properly
developed, and that no further assistance to the veteran is
required in order to comply with 38 U.S.C.A. § 5107(a).
In accordance with 38 C.F.R. §§ 4.1, 4.2 (1995), and
Schafrath v. Derwinski, 1 Vet.App. 589 (1991), the Board has
reviewed the service medical records and all other evidence
of record pertaining to the history of the veteran’s post
traumatic stress disorder. The Board has found nothing in
the historical record which would lead to a conclusion that
the current evidence of record is not adequate for rating
purposes.
Disability evaluations are based on the comparison of
clinical findings to the relevant schedular criteria.
38 U.S.C.A. § 1155. In determining the rating warranted, it
is the present level of disability that is of primary
concern. See Francisco v. Brown, 7 Vet.App. 55, 58 (1994).
The veteran’s post traumatic stress disorder is rated as 30
percent disabling under diagnostic code 9411 of the VA
Schedule for Rating Disabilities. The 30 percent evaluation
contemplates definite impairment in the ability to establish
or maintain effective and wholesome relationships with
people. The psychoneurotic symptoms result in such reduction
in initiative, flexibility, efficiency and reliability levels
as to produce definite industrial impairment. The next
higher evaluation of 50 percent requires considerable social
and industrial impairment. The next higher evaluation of 70
percent requires severe social and industrial impairment.
38 C.F.R. § 4.132.
In the case of Hood v. Brown, 4 Vet.App. 301 (1993), the
United States Court of Veterans Appeals (Court) stated that
the term “definite” in 38 C.F.R. § 4.132 was “qualitative” in
character, and invited the Board to “construe” the term
“definite” in a manner that would quantify the degree of
impairment for purposes of meeting the statutory requirement
that the Board articulate “reasons and bases” for its
decision. 38 U.S.C.A. § 7104(d)(1) (West 1991). In a
precedent opinion the General Counsel of VA concluded that
“definite” is to be construed as representing a degree of
social and industrial inadaptability that is “more than
moderate but less than rather large.” VAOPGCPREC 9-93
(O.G.C. Prec 9-93). The Board is bound by that
interpretation of the term “definite.” 38 U.S.C.A. § 7104(c)
(West 1991). With these thoughts in mind, the Board will now
consider whether a higher evaluation is warranted for the
appellant’s post traumatic stress disorder.
The Board’s evaluation of the evidence of record permits the
conclusion that the record supports a grant of entitlement to
an increased evaluation of 50 percent for post traumatic
stress disorder. In this regard the Board notes that the
veteran is in regular therapy for his psychiatric
symptomatology. His psychiatric pathology very much
adversely affects his daily life situation including the
relationship with his children. The veteran reports
persistent post traumatic stress disorder symptomatology at
home and on the job. He has made great efforts to reduce his
symptomatology; however, he is sensitive to his environment
which triggers flashbacks and nightmares, and has experienced
increased pathology following back surgery and Desert Storm
media coverage.
While the Board acknowledges that the appellant’s post
traumatic stress disorder has increased in severity, the
Board does not find that the criteria for the next higher
evaluation of 70 percent have been satisfied. In this regard
the Board notes that despite the nature and extent of
severity of post traumatic stress disorder, the veteran
remains employed full time as a welder and it has been
reported that he is also employed by the United States Postal
Service. There is no evidence of need for recent inpatient
care. The appellant is getting some benefit from therapy and
there is no indication that he is under an unusual quantity
of medication.
No question has been presented as to which of two evaluations
would more properly classify the severity of post traumatic
stress disorder. 38 C.F.R. § 4.7. Post traumatic stress
disorder has not rendered the veteran’s disability picture
unusual or exceptional in nature. It has not markedly
affected employment. Post traumatic stress disorder has not
required frequent inpatient care as to render impractical the
application of regular schedular standards, thereby
precluding a grant of entitlement to an increased evaluation
on an extraschedular basis. 38 C.F.R. § 3.321(b)(1).
For the foregoing reasons the Board finds that the record
supports a grant of entitlement to an increased evaluation of
not more than 50 percent for post traumatic stress disorder.
38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.7,
4.132, Diagnostic Code 9411.
ORDER
Entitlement to an increased evaluation of 50 percent for post
traumatic stress disorder is granted, subject to governing
criteria applicable to the payment of monetary benefits.
BRUCE KANNEE
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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